"All our work, our whole life is a matter of semantics, because words are the tools with which we work, the material out of which laws are made." — Felix Frankfurter

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Sullivan v. Abraham

The text matters. Words matter. Punctuation matters. But we have to ask ourselves: At what point does a devotion to strict textualism become an elaborate game of pretend?

Here, the Texas Legislature clearly stated the meaning it meant to convey in this particular provision of the Texas Citizens Participation Act. But the majority has decided that the most reliable indicator of the Legislature’s intended meaning is not what the Legislature said about its intended meaning. Instead, under the guise of textualism, the majority has decided that the clearest indicator of the statute’s intended meaning is the Legislature’s comma usage.

I cannot bring myself to join the majority in pretending that the Texas Legislature was so purposed and precise in its punctuation that it meant to undo its stated intentions by omitting a comma. Therefore, I must respectfully dissent.

The statutory provision at issue states that, when a legal action is dismissed under the TCPA, the prevailing party is entitled to an award of “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.” Tex. Civ. Prac. & Rem. Code, sec. 27.009(a). The question presented is whether the final modifying phrase, “as justice and equity may require,” reaches back to apply to all the items in the series (court costs, reasonable attorney’s fees, and other expenses) or only to the last item in the series (other expenses). In this case, the lower courts both found that the justice-and-equity modifier applies to all the items in the series, thereby providing a basis for the district court to award Sullivan something less than “reasonable attorney’s fees,” if justice and equity so required. See 472 S.W.3d 677, 681-682 (Tex. App.—Amarillo 2014) (affirming the district court’s interpretation).

In another case, the Dallas Court of Appeals reached the same conclusion regarding the interpretation of this provision, relying in part on statements from the legislative history. See Cruz v. Van Sickle, 452 S.W.3d 503, 526 (Tex. App.—Dallas 2014, pet. denied). As the Dallas Court noted, a House Bill Analysis Report showed that the House thought the justice-and-equity modifier “should be added…to ensure a court could award attorney fees that were lower than what the attorney typically charges, if appropriate.” Id. (quoting House Research Org., Texas House of Representatives, Bill Analysis H.B. 2973 (May 2, 2011)). Thus, we have an explicit explanation of the intended purpose and meaning of the justice-and-equity modifier: it was meant to apply to all the items in the series, including attorney’s fees. The lower courts were right.

But the majority now insists, to the contrary, that the absence of a comma in the statutory text “indicates an intent to limit the justice-and-equity modifier to the last item in the series.” Ante, at 6, 8. The majority disregards the House Bill Analysis Report (and the decisions of our lower courts)because we “do not resort to extrinsic aides, such as legislative history, to interpret a statute that is clear and unambiguous.” Ante, at 8 (citing City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013)). This is true, of course, as a general principle. But a “clear and unambiguous” statute is not what we have here.

A statute is ambiguous when it is susceptible to two equally plausible interpretations. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 356 (Tex. 2009). The majority admits that this provision of the TCPA is susceptible to two plausible interpretations, depending on whether we apply the “series-qualifier” or the “last-antecedent” canon of textual interpretation. See ante, at 5 (“Either canon might reasonably apply to this text, but they cannot both apply because they point in different directions.”).Thus, the majority admits the text is ambiguous.

And I, for one, agree with Abraham’s argument that the series-qualifier canon better explains the provision’s meaning. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147-151 (2012). Moreover, based on Cruz and the decision below, it seems at least six justices from our courts of appeals would agree with me and Abraham. The majority disagrees, relying on other canons of interpretation. See ante, at 5-9. But this disagreement only demonstrates the ambiguity of the text. And our disagreement should therefore open the door to considering the Legislature’s statements about the provision’s intended meaning. See HCBeck, 284 S.W.3d at 356.

But the majority shuts that door by insisting that the Texas Legislature’s omission of a single comma dispels all uncertainty and renders the text “clear and unambiguous.” See ante, at 6-9. In doing so, the majority relies heavily on Scalia & Garner’s attempt to rehabilitate the “punctuation canon” as a respectable basis for interpreting texts. See id. (citing Scalia & Garner at 161-162). But nothing in Scalia & Garner’s discussion of the punctuation canon suggests that it is strong enough to overpower the series-qualifier canon, or to be the decisive basis for interpretation in the face of ambiguity. To the contrary, in relying so heavily on the punctuation canon, the majority ignores Scalia & Garner’s acknowledgment that courts have historically discounted the importance of punctuation in interpreting statutes (id. at 161-164); the majority ignores Scalia & Garner’s observation that many drafters “do not know the rules of punctuation” and many more “are careless” about it (at 164); and the majority ignores Scalia & Garner’s caution that courts “should not rely much,” for example, on the omission of a single comma (at 166).

The text matters. Words matter. And yes, punctuation matters. I applaud Scalia & Garner’s effort to rehabilitate the punctuation canon as an important interpretive tool. We want drafters of statutes (and rules, and contracts) to be more careful and deliberate in their punctuation.

But we don’t need Scalia & Garner to tell us that the Texas Legislature, in this case, might have been careless or mistaken in its comma usage. The text of this provision of the TCPA is clearly susceptible to two equally plausible interpretations, and there is clear extrinsic evidence that the Legislature intended the justice-and-equity modifier to apply to all the items in the series, including attorney’s fees. Because the Legislature’s stated intent is obviously more reliable than its comma usage, I won’t pretend otherwise and must respectfully dissent.

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Jason Steed is an appellate attorney who handles both civil and criminal appeals. He's represented clients in both state and federal appellate courts across the country. For more, see the "About" page.

This blog reflects Jason's personal views and opinions and not those of his firm or its clients. The content on this blog is available for informational purposes only and is not legal advice. The transmission of information on this blog, or communications with Jason via the blog, do not establish or constitute an attorney-client relationship.